The O'Bannon antitrust case against the NCAA could potentially have a huge impact. / USA TODAY Sports

by Steve Berkowitz, USA TODAY Sports

by Steve Berkowitz, USA TODAY Sports

OAKLAND - The plaintiffs in the Ed O'Bannon class-action antitrust trial against the NCAA on Thursday pulled back the curtain on the usually secretive world of major-college sports television contracts.

And after an opening three days in which both sides advanced their cases, a major victory was gained by only one side.

The question is: Which side?

Either the plaintiffs clearly demonstrated that the names, images and likenesses of Bowl Subdivision football and Division I men's basketball players are being misappropriated by the NCAA, its conferences and its schools - or the NCAA clearly demonstrated that the players have no such rights that can be misappropriated.

U.S. District Judge Claudia Wilken's interpretation is likely to go a long way toward determining not only whether the plaintiffs get the injunction they are seeking - one that would prohibit the NCAA from limiting what football and men's basketball players can receive in exchange for playing their sports - but also whether such an injunction will be the players' path to a share of billions in TV money.

One of the plaintiffs' legal hurdles in the case is the need to establish that there really is a viable, legitimate marketplace for the players' names and images among telecasters of live sports events.

Their lawyers made that seem obvious Thursday when they used expert testimony to reveal provisions of the Big 12 Conference's television agreement with Fox - provisions that Wilken allowed to be unveiled over Fox's objections - and to discuss in greater detail and context previously public provisions of the NCAA's deal with CBS and Turner that primarily covers rights to the Division I men's basketball tournament.

Both of the deals were negotiated after the O'Bannon lawsuit was filed in the summer of 2009, although suit did not turn heavily toward live TV until August 2012. The NCAA's deal is dated April 2010, Fox's April 2011.

The Big 12-Fox deal includes a provision that states the conference is responsible for giving Fox "all name and likeness rights of all participants" that are "reasonable and necessary" for Fox to telecast live events.

Ed Desser, a former NBA TV executive who now works as a consultant, said the Big 12-Fox deal also includes indemnification language designed to give Fox "great comfort" that it won't face any legal claims rising from the deal.

The NCAA's contract with CBS and Turner states that: "The NCAA represents and warrants that the recording and capturing of the Game and Distributing the actual video of the live action as a Full Game, or a Re-Air of substantially the entire Game, does not violate any statutory or common law rights of privacy or publicity of the individual participants and coaches in such Game, or any other rights of such individuals."

Desser also revealed the contract's previously sealed indemnification provisions - provisions that CBS had attempted to keep sealed, even on Thursday when an attorney representing the network stepped forward from the courtroom gallery to address Wilken. (The plaintiffs, the NCAA, CBS and Turner eventually reached agreement on how much of the contract will remain sealed.)

In general, Desser said, name, image and likeness rights "are at the heart of what's being conveyed" in these deals. These rights, he said, have "significant value" because "no television network wants to show an empty arena or a game where they have to blur out the players."

However, on cross-examination, NCAA lawyer Kelly Klaus got Desser to say that there are some TV deals that do not use the specific words, "name, image, likeness." Klaus then pointed out that rights, in the context of these TV agreements means "an entitlement that can be enforced in a court of law."

Klaus proceeded to discuss with Desser a TV deal that Desser had worked on for the California Interscholastic Federation, the state's high school athletic association. During this exchange, Klaus said California state law does not recognize name and image rights for live telecasts of sports events, and he said there are no rights as a matter of law, there is nothing of value being transferred relative to the athletes in the CIF deal. (The NCAA has argued previously that many other states also do not recognize name and image rights for live sports telecasts.)

Responded Desser: "I still think players' activity on the field is something of value, or the telecaster would not be willing to pay for it."

That set the stage for the NCAA's TV expert, Neal Pilson, the former CBS Sports president who also is now working as a consultant.

In addressing another part of the NCAA's case for limiting the compensation available to football and men's basketball players, Pilson said that allowing those players to be compensated for use of their names, images and likenesses in live telecasts would result in those sports becoming "just another professional sport" and that "casual fans will be turned off." (The NCAA says its compensation limits are justified, in part, because they help keep college sports distinct and popular.) But under cross-examination, Pilson said that while he felt that college players getting as much as $1 million "would trouble me," the players getting $5,000 through arrangements that pay all the players equally "wouldn't."

More important, Pilson differentiated between name, image and likeness of people appearing in live sports telecasts and name, image and likeness rights of such people. He testified that telecasters do not negotiate for "so-called name, image and likeness rights," but rather for exclusive access to sports events and the participants' names, images and likenesses are simply "part of the broadcast of the event."

Asked after the court session about this differentiation, the plaintiffs' lead attorney Michael Hausfeld said it exists "only in Mr. Pilson's and the NCAA's mind in trying to avoid the fact that the athletes have rights in their NIL and those rights have value. Otherwise, why is anyone concerned about getting them, why is anyone concerned about commercializing them."

As for dealing with laws that don't recognize name, image and likeness rights, Hausfeld said: "The (name, image and likeness) rights of the athletes have a value marketwise, whether or not there may be a law saying, 'No there is none.' And that's the purpose of the indemnification. The indemnification says, 'I (as the rights-seller) may not be perfectly comfortable with whatever that law says, so you indemnify me in the event I'm wrong.' "

The NCAA's chief legal officer, Donald Remy, had a different view.

"What the plaintiffs are trying to do is create a right where one historically and legally has not existed," he said. "We were finally able to lay out in the court, before the judge what we've been saying all along in this case with respect to what happens in broadcast agreements. â?¦ The reality is it's for exclusive access to the facility to broadcast the event. But it's not for name, image and likeness rights. â?¦ It's been the case that (telecasters show) the faces and the likenesses of the individuals in there - the players, the coaches, the referees, the people in the stands, the guy selling popcorn, peanuts and cotton candy. Nobody has ever suggested - and it's not the state of the law - that the broadcast of those individuals is the use of their name, image and likeness rights."